Date Issued: September 18, 2023

File: ST-2022-002099

Type: Strata

Civil Resolution Tribunal

Indexed as: Palmer v. The Owners, Strata Plan VR2265, 2023 BCCRT 792

Between:

SARAH ANNE PALMER

Applicant

And:

The Owners, Strata Plan VR 2265

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr, Vice Chair

INTRODUCTION

1.      Sarah Anne Palmer owns and lives in strata lot 24 (also known as unit 208) in the strata corporation The Owners, Strata Plan VR 2265 (strata). Ms. Palmer alleges that the residents in the strata lot above her, known as unit 308, have been causing unreasonable noise since July 2020. She says the strata has not reasonably investigated her ongoing complaints or enforced its noise and flooring bylaws. She asks for orders that the strata properly investigate the noise issues and take steps to reduce the noise, such as by soundproofing the floor. She also claims $5,000 in damages for the loss of use and enjoyment of her home. Ms. Palmer is represented by a lawyer, Maryam Majdzadeh.

2.      The strata says it investigated Ms. Palmer’s complaints and concluded that the noise she complained about was reasonable. It also says unit 308’s owner complied with the strata’s flooring bylaw when they installed the new flooring. The strata asks me to dismiss Ms. Palmer’s claims. The strata is represented by a lawyer, Alison Hopkins.

JURISDICTION AND PROCEDURE

3.     These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

4.     The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

5.     The CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in court.

ISSUES

6.      The issues in this dispute are:

a.    Is the noise from unit 308 unreasonable?

b.    Did the strata reasonably investigate Ms. Palmer’s bylaw complaints?

c.    Is Ms. Palmer entitled to any of her requested remedies?

BACKGROUND

7.     In a civil claim such as this, Ms. Palmer as the applicant must prove her claims on a balance of probabilities, which means “more likely than not”. While I have read all the parties’ evidence and submissions, including cited caselaw, I only refer to what is necessary to explain my decision.

8.     The strata consists of 48 apartment-style strata lots in a 3-story wood-framed building. It was built in the late-1980s. Unit 308 is directly above unit 208.

9.     The strata has filed several bylaw amendments with the Land Title Office over the years, but none that are different from Standard Bylaw 3(1), which, in part, prohibits unreasonable noise. On February 11, 2016, the strata filed a bylaw amendment adding bylaw 5(h), which required owners wishing to install hard-surface flooring to provide the strata council with the proposed flooring’s soundproofing for approval. The bylaw did not set a minimum soundproofing threshold.

EVIDENCE AND ANALYSIS

Is the noise from unit 308 unreasonable?

10.  The parties essentially agree on the applicable law. Standard Bylaw 3(1) prohibits using a strata lot in a way that creates unreasonable noise, causes a nuisance, or unreasonably interferes with another resident’s use and enjoyment of their strata lot. I find that when it comes to noise, these bylaws all amount to the same thing, which is that they prohibit unreasonable noise. In the strata context, unreasonable noise is noise that represents a substantial, non-trivial interference with the use and enjoyment of property: The Owners, Strata Plan 1162 v. Triple P Enterprises, 2018 BCSC 1502. To meet this standard, the noise must be intolerable to an ordinary person: St. Lawrence Cement v. Barrette, 2008 SCC 64. Whether noise constitutes a nuisance depends on factors such as its nature, intensity, frequency, duration, and timing. In the context of a strata development, there must be a “certain amount of give and take” between neighbours: Sauve v. McKeage et al., 2006 BCSC 781.

11.  I note at the outset that Ms. Palmer created very detailed noise logs between 2021 and 2023. I have reviewed them all. However, it is well-established that subjective complaints alone are insufficient to prove a nuisance. Rather, people complaining about noise must prove with objective evidence that noise is intolerable to an ordinary person. This guards against the risk that a particular person may be unusually sensitive to noise. For this reason, I will focus much of my analysis on the objective evidence before me. That said, I accept that Ms. Palmer finds the noise from unit 308 intolerable.

12.   Ms. Palmer has owned unit 208 since 2015. She says she had no issues with noise until July 2020. Unit 308’s flooring changed around that time, and since then, she says she has been able to hear everything that happens above her, including walking, vibrating phones, the television, fans, and appliances. Ms. Palmer says that the noise is so bothersome she often cannot read, sleep, or do other normal activities around her home. She says she has attempted to use noise cancelling headphones, white noise machines, and earplugs to mitigate the noise, with little success.

13.  Ms. Palmer first complained about noise to the strata manager on July 15, 2020. At the time, she believed a humming noise was coming from unit 108’s bathroom fan. Unit 108 is directly below unit 208. She did not mention noise from above.

14.   Ms. Palmer raised the issue of bathroom fan noise from unit 108 again in January 2021. The strata manager said the unit 108 resident denied using the fan for the past several months. Ms. Palmer again did not mention any noise from above. The strata manager suggested that the strata might retain a “noise professional”, but ultimately this did not happen.

15.  Ms. Palmer says she determined that unit 308 was the fan noise’s source in April 2021. By this time, unit 308’s former owner had moved out. The new owner’s brother, AB, moved had in.

16.   Ms. Palmer says she emailed a formal complaint to the strata manager about unit 308 on May 25, 2021. That email is not in evidence, but on June 23, 2021, the strata manager emailed Ms. Palmer that they had spoken to AB about “the fan noise”, which corroborates Ms. Palmer’s evidence. According to Ms. Palmer’s noise log, over the summer she communicated directly with AB when noise was bothering her. AB often (but not always) reduced their noise on request, generally by turning off the bathroom fan or turning down the television volume. Other than 2 references to loud social gatherings, Ms. Palmer’s noise log from April to September 2021 did not mention anything other than the fan noise, an air conditioner, the television, or a vibrating phone. Notably, there is no mention of footsteps or the dishwasher.

17.   On August 4, 2021, Ms. Palmer asked the strata manager to talk to the owner of unit 308, LL, about the noise. The strata manager responded the same day that LL had apologized. Ms. Palmer emailed the next day that the overnight fan noise had continued. The strata manager called LL again, and this time left a voicemail. 

18.   On August 12, 2021, Ms. Palmer emailed the strata council members about the ongoing noise. She questioned whether the floor was properly soundproofed. She attached a screen capture of a phone app decibel reader that showed a measurement of 68 decibels. In a series of emails, the strata council arranged for a member to attend units 108 and 308. The strata says it did so, but later text messages between AB and Ms. Palmer indicate that no one ever attended unit 308. Also on August 12, 2021, Ms. Palmer emailed the strata manager asking for a “proper investigation”.

19.   On September 8, 2021, Ms. Palmer emailed the strata manager that she had spoken to LL and they had a “plan in place to sort out the noise”. The strata manager said to advise if there were further issues.

20.   AB moved out at the end of October 2021. LL moved in with a roommate. Ms. Palmer says that once she found out that AB was moving out in early September, she stopped logging noise and did not complaint to the strata, hoping that LL would be quieter. According to Ms. Palmer, this did not happen.

21.   On November 19, 2021, Ms. Palmer complained to the strata manager about the vibrations from unit 308’s dishwasher. This was her first complaint about the dishwasher. Around this time, Ms. Palmer’s noise log began regularly mentioning “stomping” noises.

22.   In December 2021, the strata sought legal advice about how to address the ongoing complaints about noise and unit 308’s floors. On December 23, the strata said it wanted to conduct an “in suite objective investigation”. The strata interviewed Ms. Palmer and LL in early January and conducted its test on January 8, 2022.

23.   The strata provided a spreadsheet that sets out its process and findings. The strata used a decibel reader phone app. There were strata council members in unit 208 (recording and observing) and unit 308 (recreating various noises). The strata first recorded the background noise level, which was around 20 decibels when unit 208 was “dead quiet”. The strata made the following noteworthy recordings:

•         Walking, stomping and jumping: between 30 and 40 decibels with some noticeable vibration.

•         Bathroom fan: 25 decibels in the bathroom and 22 decibels in the bedroom.

•         Ringing and vibrating phone on a hard surface: 30 decibels.

•         Rocking chair and rolling desk chair: 40 decibels.

•         Vacuum: 40 to 55 decibels.

•         Dishwasher: 30 decibels in the kitchen and 26 decibels in the living room.

24.   On January 12, 2022, the strata wrote a detailed report about the noise. The strata said that the strata council members who attended unit 208 did not consider the noise to be a nuisance, and concluded there was no bylaw violation. Still, the report set out some “good neighbour recommendations” for LL, such as placing sound dampening pads or carpets on the floor and avoiding loud activities overnight.

25.   On January 31, 2022, LL confirmed to the strata manager that they had placed carpet squares underneath their rolling desk chair, avoided any appliance use after 10:00pm, and had tried to avoid placing their phone on hard surfaces. Ms. Palmer denies that LL laid down any carpet or sound dampening, but I find nothing turns on this because the strata did not require LL to take these steps as part of any bylaw enforcement.

26.   Ms. Palmer continued to complain about noise between January and March 2022. The strata took no action because it considered the complaints to be the same as before, which it had already concluded was not a bylaw breach. Ms. Palmer applied to the CRT for dispute resolution on March 22, 2022.

27.   After a May 9, 2022 council hearing, the strata hired an acoustic professional, Antiquity Environmental Consulting Ltd., to provide a report about the noise in unit 208. Antiquity’s testing occurred for about 4.5 hours on July 21, 2022, and Antiquity provided its report on July 25, 2022. According to the report, Antiquity turned on a dishwasher, air conditioner, bathroom fan, stove fan, and television during testing.

28.   Antiquity reported that the ambient noise during testing was 61 decibels in the bedroom and 71 decibels in the living room, both of which exceeded the applicable municipal noise bylaw. Antiquity also recorded many intermittent noises over 100 decibels, including several that approached 120 decibels. Ms. Palmer says the Antiquity report supports her claims. However, for the reasons that follow, I place no weight on report.

29.   On their face, I find that Antiquity’s noise readings are suspect. Quite simply, Antiquity recorded remarkably high decibel levels. For example, 70 decibels is about as loud as being 15 meters from a busy highway: Suzuki v. Munroe, 2009 BCSC 1403. Also, it is difficult to imagine how interior residential noises in unit 208 could reach 120 decibels. The World Health Organization (WHO) noise guidelines in evidence recommend that noise from ceremonies, festivals, and events should never exceed 110 decibels to avoid acute hearing impairment.

30.   I find that these extreme results are likely explained by flaws in Antiquity’s methods. The report included a specification sheet for the device used to measure the noise, called a dosimeter. According to the sheet, a dosimeter is used to measure noise levels that workers experience. A photo of the dosimeter shows it being worn on a person’s shirt. In contrast, photos of Antiquity’s testing in unit 208 show the dosimeter resting on a shelf in the living room and a dresser in the bedroom, both hard surfaces. While I have no expert evidence on Antiquity’s methods, I find it obvious that placing a sound measuring device on a hard surface when it is designed to be worn on clothing will lead to inaccurate results. I also note that the strata raised other concerns about Antiquity’s report that led Antiquity to provide a full refund.

31.   The strata disregarded Antiquity’s report and retained an engineering firm, Norman Disney & Young (NDY), to perform noise testing. I accept this report as expert evidence, which Ms. Palmer does not dispute. NDY provided its report on September 15, 2022. In the report, NDY explained 3 types of decibel measurements: LAeq, the average noise level over a given period, LA90, the 90^th percentile noise level over a given period, and LAmax, the noise level of an intermittent event. NDY said it used LAeq because testing was a short duration. I return to this issue below.

32.   NDY noted that the WHO recommends continuous daytime noise be less than 35 decibels, measured using LAeq. The WHO recommends avoiding intermittent noises over 45 decibels at night, which is measured using LAmax. NDY said there is no standard for intermittent daytime noise but used a 50-decibel threshold for intermittent noise. NDY also referred to Canada Mortgage and Housing Corporation guidelines for road and rail noise over a 24-hour period, which is 35 decibels for bedrooms, 40 decibels for living, dining, and recreation rooms, and 45 decibels for kitchens, bathrooms, hallways, and utility rooms.

33.   NDY’s testing included making various types of noise in unit 308 to mimic the noises Ms. Palmer complained about and measuring those noises in unit 208. NDY recorded background noise of 22 decibels in unit 208 using LA90, presumably to determine the background noise without the various tested noises. Most of the tested noises were below 30 decibels LAeq, such as walking with slippers, walking barefoot, rolling the office chair, and using a microwave, alarm clock, dishwasher, and phone alarm. The sound of unit 308’s bathroom fan was 25 decibels in the bedroom and 31 decibels in the living room. Unit 308’s kitchen fan was 33 decibels. The loudest noises were the vacuum (42 decibels) and the sound of running (40 decibels). NDY concluded that the vacuuming and running sounds were the only ones to exceed the 35-decibel threshold for continuous daytime noise. Nothing was recorded over the 50-decibel threshold for intermittent noise.

34.   Ms. Palmer relies on expert evidence from Tony Adamson, a senior technologist at Raincloud Noise & Vibration Inc., who reviewed aspects of NDY’s report. The strata does not dispute that Tony Adamson has the expertise to comment on the NDY report, and I find that they do. Tony Adamson said that NDY’s failure to use LAmax meant it did not accurately measure intermittent noises. I accept Tony Adamson’s evidence that LAeq does not accurately measure percussive noises, which makes it less useful for certain noises. NDY does not explain why a longer duration of testing is necessary to measure short, percussive events using LAmax, which I find is counterintuitive on its face. I find that NDY’s report may not accurately measure the intensity of intermittent events like walking or running.

35.   However, Tony Adamson does not explain why LAeq would not accurately measure continuous noises like fans, the dishwasher, or the air conditioner. I find that those results are reliable.

36.   Tony Adamson also criticizes NDY’s decision not to do longer testing, including overnight. I acknowledge that acoustic engineers often set up noise testing over several days and nights. However, I find that those long tests are typically used when the upstairs neighbour is unaware of the testing. This long duration increases the likelihood that the acoustic engineer will have a full picture of the noise. Here, LL’s cooperation meant that NDY was able to recreate the various noises, which I find made longer testing unnecessary.

37.   I therefore place considerable weight on NDY’s measurements of continuous noise. I return to the issue of percussive noise below.

38.   Ms. Palmer provided several videos of the noise in unit 208, some of which showed readings on a decibel reader. As outlined below, her decibel readings are considerably higher than the strata’s and NDY’s.

39.   Ms. Palmer provided a video of unit 308’s stove fan that showed decibel readings over 45, but the noise was barely audible compared to other sounds like Ms. Palmer’s footsteps. This is similar to the dishwasher noise, which the decibel reader showed over 50 decibels in the kitchen when there was only a low hum audible. The dishwasher was barely audible from the living room despite decibel readings around 40 decibels. One video of the decibel reader when the air conditioner is on shows readings around 50 decibels near the window. However, in other videos, the air conditioner is barely audible, if at all. I also find that the bathroom fan is faintly audible in unit 208’s bathroom despite decibel readings around 50. The bathroom fan noise is not discernible in the rest of unit 208 despite decibel readings around 45.

40.   The videos of footsteps show they were audible at times, which is consistent with the strata council members’ observations. However, the sounds do not seem intrusive in the videos. I accept that the vacuum is loud in the videos, which is consistent with NDY’s and the strata’s reports.

41.   Ms. Palmer’s recordings are difficult to reconcile with NDY’s professional recordings and seem inconsistent with the accompanying sounds in the videos. There is no expert evidence before me to explain the possible reasons for the discrepancy. On balance, I find that the NDY report and the strata’s recordings combined are more likely to be accurate than Ms. Palmer’s. I say this despite NDY’s failure to record LAmax levels because NDY’s and the strata’s measurements of continuous noises are similar. This suggests that the strata’s methods were reasonably accurate. There is no similar corroboration of Ms. Palmer’s measurements.

42.   Finally, Ms. Palmer provided several witness statements. One witness, JB, said that they considered the dishwasher, air conditioner, and walking noises to be more than what “should generally come through a wood framed building”. Another witness, MK, said that they had visited Ms. Palmer many times and found the dishwasher, bathroom fan, and general living noises to be “excessive”. These statements both also comment on the witnesses’ perception of the strata’s treatment of Ms. Palmer, which I find indicates that they are not neutral witnesses and are aligned with Ms. Palmer. I place little weight on these statements as a result. I find that the other witness statements contain no relevant information because the witnesses either did not hear any noise firsthand or did not comment on how loud it was.

43.   In summary, I place the most weight on NDY’s and the strata’s measurements, which I find establish that only the vacuum and running noises are objectively intrusive when they happen.

44.   Based on the noise logs, I find vacuuming is a rare problem. For example, 2022’s noise log is 97 pages and there are only 3 clear references to vacuuming upstairs (there are a few entries where it is unclear whether Ms. Palmer is referring to unit 308’s vacuum or her own vacuum being unable to drown out other upstairs noises). I find that vacuuming also likely does not last long. As for the “running” noises, there is also little indication in the noise logs that running is a problem. The noise logs often mention “stomping”, but the strata measured “stomping” noise to be only 35 decibels. While decibel levels are not determinative of whether noise is unreasonable, I find that this combined evidence suggests that the noises from unit 308 are audible but not unduly intrusive.

45.   I also find that Ms. Palmer’s complaints over time support my conclusion that many of the noises she now complains of are reasonable. I say this because for about the first year after unit 308’s flooring changed, and for about 6 months after AB moved in, her only complaints were about the bathroom fan. She never mentioned vacuuming, walking, the dishwasher, or other noises she now considers intrusive. In fact, her first noise log entry about the dishwasher is from November 2021, which says that the noise hurt her ears. This suggests that these noises did not initially bother her and that she may have become particularly sensitive to them over time.

46.   As I found in Williams v. The Owners, Strata Plan BCS 184, 2023 BCCRT 684, a reasonable and objective person in a multi-family living situation expects and tolerates a certain amount of intrusive noise. Ms. Palmer’s says in one email to Tony Adamson that even though the decibel levels are not high in the NDY report, “the noises should not be there in the first place”. I find that this suggests her expectations may be unreasonable. I find that the audible noise transfer from unit 308 may at times be annoying, but overall is objectively reasonable.

Did the strata fail to reasonably enforce its bylaws?

47.   Ms. Palmer also alleges that the strata unreasonably failed to investigate her complaints and enforce its noise and flooring bylaws. I find that this amounts to a claim that the strata treated her significantly unfairly.

48.   The CRT has authority to make orders remedying a strata corporation’s significantly unfair acts or decisions. The court has the same authority under section 164 of the SPA, and the same legal test applies: Dolnik v. The Owners, Strata Plan LMS 1350, 2023 BCSC 113. In Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, the court confirmed that significantly unfair actions or decisions are those that are burdensome, harsh, wrongful, lacking in probity and fair dealing, done in bad faith, unjust, or inequitable. In applying the test, the owner’s objectively reasonable expectations are a relevant factor, but are not determinative: Dollan v. The Owners, Strata Plan 1589, 2012 BCCA.  

49.   Section 26 of the SPA requires the strata to enforce its bylaws except in very limited circumstances that I find do not apply here: Abdoh v. The Owners of Strata Plan KAS 2003, 2014 BCCA 270. The CRT has consistently held that owners have an objectively reasonable expectation that a strata corporation will investigate complaints and enforce bylaws.

50.   I will first address Ms. Palmer’s concerns about the strata’s response to her noise complaints. I acknowledge that the strata did very little between July 2020 and May 2021. However, there were few complaints at that time, and Ms. Palmer’s focus was on her belief that unit 108’s bathroom fan was causing the noise. While the strata could have done more to investigate these complaints, even if they were not persistent, I find that any failure to do so ultimately would not have made any difference because the investigation would have focused on unit 108.

51.   Ms. Palmer also points to the lack of formal enforcement or investigation after May 2021, when she began complaining about noise from unit 308. I find that the strata did not ignore these complaints. Instead, it focused its efforts on trying to persuade AB to modify their behaviour to resolve the conflict. As mentioned above, Ms. Palmer’s noise log indicates that this was somewhat successful over the summer of 2021. When that relationship broke down, LL intervened, which Ms. Palmer was hopeful would help. Shortly after that, AB announced they were moving out, and I find it was reasonable to see if the noise issues were specific to AB’s activities. Overall I find that attempting to resolve noise disputes between neighbours informally by encouraging dialogue and compromise was a reasonable approach for the strata to take during that time.

52.   After LL moved in and the noise complaints continued, the strata promptly sought legal advice and performed its noise test shortly thereafter. I find that the strata’s testing, while not professional, was thoughtful and reasonably robust. In 2022, even though the strata’s own measurements indicated that the noise levels in unit 208 were reasonable, the strata retained Antiquity. It is not the strata’s fault that Antiquity’s report was unusable and it needed to retain another expert. I find the strata took all these steps reasonably promptly.

53.   Ms. Palmer also argues that the strata did not follow NDY’s recommendations on how to reduce noise transfer, such as reviewing the floor-ceiling assembly. The strata says it was not bound to do so because it had concluded the noise level was reasonable. The strata says it would be an irresponsible use of strata funds to hire professionals to investigate something that it had already determined was not a bylaw breach. I agree that absent a proven bylaw breach, the strata was not required to implement NDY’s recommendations, although it certainly is within its discretion to do so.

54.   The strata also acknowledges that it stopped investigating after receiving the NDY report because Ms. Palmer’s ongoing noise complaints did not change. I agree that that approach was reasonable in the circumstances. While the strata must maintain an open mind with respect to ongoing complaints and new evidence, it would have been pointless to do anything more than review Ms. Palmer’s new noise complaints to make sure nothing had changed.

55.   In short, I find that the strata’s investigation of Ms. Palmer’s noise complaints was reasonable, and that there was no bylaw breach to enforce.

56.   I turn to the flooring issue. As mentioned above, when the former unit 308 owner installed new flooring, bylaw 5(h) required them to get strata approval.

57.   Ms. Palmer does not allege that the former unit 308 owner breached the flooring bylaw. This is because the strata manager at the time approved the renovation by telling the former owner that the strata council “does not involve itself” in renovations, although it expected “proper underlay” to be used. The former owner did not provide the strata manager with the flooring’s specifications at the time. In late 2021, LL obtained this information through their realtors. The flooring was rated at Impact Insulation Class (IIC) of 72, which is undisputedly a high rating.

58.   Ms. Palmer alleges that the strata failed to do its due diligence by failing to consider the proposed flooring. Ms. Palmer essentially argues that the strata should have retained an engineer to assess how the proposed flooring would affect noise transfer. Ms. Palmer relies on expert evidence from Tony Adamson that a floor’s IIC rating does not necessarily translate to its real-world performance, which I accept. Tony Adamson also reviewed the manufacturer’s testing against the strata’s as-built construction and concluded that the floor likely performed well below its 72 IIC rating. I accept that this is also likely true.

59.   However, I do not agree that the strata had any obligation to look beyond the floor’s IIC rating, which is a common way to measure a floor’s soundproofing potential. I find that Ms. Palmer’s expectation that the strata would hire an engineer to vet each flooring request is unreasonable and goes well beyond what the bylaw required at the time. I note that the strata has since passed a new flooring bylaw, which is more detailed but still relies on IIC ratings. It was open to the strata to adopt an Actual Impact Insulation Class (AIIC), as another strata corporation did in Lucas v. The Owners, Strata Plan 200, 2020 BCCRT 238. However, as the tribunal member noted in that dispute, adopting an AIIC standard comes with practical concerns as it is difficult to know in advance exactly how well a floor’s soundproofing will perform once installed.

60.   In any event, I agree with the strata that if the strata manager had forwarded the specifications of the proposed flooring to the strata council, the strata would likely have approved the flooring based on its high IIC rating. So, even though the strata manager failed to follow the correct process set out in the bylaws at the time, nothing came of it.

61.   Ms. Palmer also says that the previous flooring bylaw was inadequate to protect residents from unreasonable noise transfer. I find that the content of the former flooring bylaw was the result of the owners’ democratic choice, and I see no reason for the CRT to interfere with it.

62.   I therefore find that Ms. Palmer has not proved any of her claims, and I dismiss them. With that, I find it unnecessary to address the parties’ arguments about the appropriate remedy.

TRIBUNAL FEES AND EXPENSES

63.  Under section 49 of the CRTA and the CRT’s rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Ms. Palmer was unsuccessful, so I dismiss her claim for CRT fees and dispute-related expenses, including her claim for legal fees.

64.  The strata claims $5,250 in reimbursement for the NDY report. Ms. Palmer essentially argues that it is not a dispute-related expense, but rather an expense related to the strata’s bylaw investigation responsibilities. Ms. Palmer also says that the CRT lacks jurisdiction to order reimbursement of the NDY report, although she does not explain that submission. I find that if the NDY report is a reasonable dispute-related expense, I may order reimbursement under the CRTA and CRT’s rules.

65.  It is true that strata corporations often retain acoustic engineers or consultants as part of their bylaw investigation responsibilities. When they do, the cost is not a dispute-related expense even if it is later used in a CRT dispute: Van Der Mee v. The Owners, Strata Plan NW 3291, 2023 BCCRT 213. I am satisfied that in the circumstances here the NDY report is related to the CRT dispute. Before Ms. Palmer started this dispute, the strata had completed its investigation and had no intention of investigating further. It only decided to do further testing after, and in direct response to, Ms. Palmer starting this dispute. I find that the NDY report is a dispute-related expense. I also find that it was a reasonable expense for the strata to incur given Ms. Palmer’s allegations.

66.  I do not agree with Ms. Palmer that ordering reimbursement would “[open] the floodgates to a whole new issue”. The CRT regularly orders unsuccessful parties to reimburse reasonable dispute-related expenses. I see no reason why an acoustic engineer’s report would be treated any differently. Ms. Palmer also argues that the strata provided no precedent for owners being required to reimburse a strata corporation for the cost of acoustic testing. While precedent is unnecessary because each case turns on its facts, I note that the CRT has occasionally made such orders, for example in Pope v. Yas, 2019 BCCRT 1350.

67.  I therefore order Ms. Palmer to reimburse the strata $5,250 for the NDY report.

68.   The strata must comply with the provisions in section 189.4 of the SPA, which includes not charging other dispute-related expenses against Ms. Palmer.

DECISION AND ORDERS

69.   I order that within 30 days of this order, Ms. Palmer reimburse the strata $5,250 for the NDY report.

70.   I dismiss Ms. Palmer’s claims.

71.   The strata is entitled to post judgement interest under the Court Order Interest Act, as applicable.

72.  Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.